High Court Reverses Ban on Public Aid to Private Schools

Overturning a 12-year-old precedent, a deeply divided U.S. Supreme
Court ruled this week that the U.S. Constitution does not prohibit
school districts from sending teachers into religious schools to
provide remedial services to needy students.

The 5-4 ruling marked a substantial shift in the direction of
permitting more government aid to religion and sparked immediate debate
about whether the high court would be receptive to
private-school-voucher plans that include church-affiliated
schools.

In the near future, the ruling means that the estimated 173,000
children in religious schools nationwide who participate in the federal
Title I remedial education program will no longer have to travel to
mobile vans, public schools, or other neutral sites to receive
services. ("Case Limiting Title I
Gets New Day in Court," April 9, 1997.)

"No longer will children have to leave their school buildings in
order to get the assistance they need," President Clinton said in a
written statement praising the court's June 23 ruling in
Agostini v. Felton (Case No. 96-552).

The Clinton administration supported the effort of the New York City
school system to reverse the 1985 Supreme Court ruling that barred
public school teachers from providing remedial education on the
premises of religious schools.

Secretary of Education Richard W. Riley announced that the
Department of Education would issue guidance to school districts in the
near future about implementing the decision.

"Hundreds of millions of dollars have been spent in the past 12
years for mobile vans and other costs," he said in a statement. "We can
now work to direct this money to the classroom."

Three Criteria

In its decision 12 years ago in the case then known as
Aguilar v. Felton, the high court ruled 5-4 that the
practice of sending public school teachers into religious schools
violated the First Amendment's ban on government establishment of
religion.

In the majority opinion this week in Agostini, Justice Sandra
Day O'Connor declared that the 1985 ruling "is no longer good law."

"New York City's Title I program does not run afoul of any of three
primary criteria we currently use to evaluate whether government aid
has the effect of advancing religion," she said. "It does not result in
governmental indoctrination; define its recipients by reference to
religion; or create an excessive entanglement" between government and
religion.

She was joined by Chief Justice William H. Rehnquist and Justices
Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas.

Writing in dissent, Justice David H. Souter said the ruling's result
was to "authorize direct state aid to religious institutions on an
unparalled scale, in violation of the establishment clause's central
prohibition against religious subsidies by the government."

He said the Title I program has worthy goals, and he acknowledged
that the cost of compliance with the 1985 ruling was high.

"But constitutional lines are the price of constitutional
government," he said. Justices John Paul Stevens and Ruth Bader
Ginsburg signed onto all of Justice Souter's dissent, and Justice
Stephen G. Breyer signed on in part.

In a separate dissent, Justice Ginsburg said the majority should not
have used the same case from New York City to re-examine the 1985
Aguilar ruling. She suggested the majority had pursued an agenda
to overturn Aguilar and would not let the procedural difficulties of
the new case stand in the way.

The three other dissenting justices all signed Justice Ginsburg's
opinion.

Grand Rapids Reversal

The ruling was a victory for the New York City board of education,
whose Title I program was at issue in both the 1985 Aguilar ruling and
the court's new decision.

The New York district undertook an unusual legal strategy to return
to the Supreme Court after five justices said in a separate 1994
decision that the Aguilar ruling should be reconsidered or
overturned.

New York City officials invoked a seldom-used court procedure to ask
a federal judge for relief from the injunction stemming from the 1985
ruling. The district argued that church-state law had fundamentally
shifted since that decision and that the Aguilar ruling had been
undermined. Both a federal district court and appeals court were
sympathetic to the New York district, but they held that only the
Supreme Court had the power to overturn one of its precedents.
("N.Y.C. Seeks To Overturn Limits on
Title I at Religious Schools," Feb. 28, 1996, and "N.Y.C. Gets Go-Ahead To Seek Felton
Reversal," May 29, 1996.)

Justice O'Connor endorsed that view in her opinion and said she
doubted that many litigants would use a similar procedure to seek
reversal of other high court precedents.

The most surprising element of the majority ruling was that it went
further than the relief sought by the New York district or the Clinton
administration and overruled part of a companion case to the 1985
Aguilar ruling.

In School District of Grand Rapids v. Ball, the court
struck down two programs a Michigan district implemented to serve
private school students, the vast majority of whom attended religious
schools. The Grand Rapids district's Shared Time program provided not
only remedial instruction to needy students, but also enrichment
classes in subjects that were not part of the core curriculum of the
private schools.

The high court 12 years ago struck down the Shared Time program on
broader grounds than the entanglement rationale used to strike down New
York City's policy of sending Title I teachers into religious
schools.

The court said in 1985 that the Grand Rapids program created a
symbolic union of church and state and impermissibly financed religious
schooling by subsidizing the primary religious mission of the sectarian
school.

Justice O'Connor wrote that two high court rulings since then have
significantly altered the church-state landscape and undermined the
Aguilar ruling and the part of the Ball ruling striking
down the Shared Time program.

The first was a 1986 ruling in Witters v. Washington
Department of Services for the Blind, in which the court upheld a
vocational tuition grant for a blind student who wished to use it to
attend a Christian seminary. The second was the court's 1993 ruling in
Zobrest v. Catalina Foothills School District, which
authorized a school district to provide a sign-language interpreter for
a deaf student attending a Roman Catholic high school. ("2 School Cases Heard by High Court Raise
Church-State Issues," March 3, 1993.)

"Zobrest and Witters make clear that, under current law, the Shared
Time program in Ball and New York City's Title I program in
Aguilar will not, as a matter of law, be deemed to have the
effect of advancing religion through indoctrination," Justice O'Connor
said.

She stressed that the Aguilar precedent was not being
reversed based on practical complications such as the added expense of
using vans. Nor was the reversal based on the views of the five
justices calling into question the ruling in a separate 1994 case known
as Board of Education of the Kiryas Joel Village School District
v. Grumet. ("Court Strikes
District for Hasidic Sect," July 13, 1994.)

Questions About Vouchers

Justice O'Connor said that a public school program of aid to
religious school children would pass constitutional muster provided it
included the safeguards that the New York City district employed before
1985. The safeguards included reminders that the public school teachers
were accountable to public school supervisors, not private school
officials; they served only those children eligible for Title I; they
could not engage in cooperative teaching with religious school
teachers; and they could not include religious materials in their
teaching. Also, all religious symbols were removed from the classrooms
used for Title I services.

Lisa H. Thurau, the executive director of the National Committee for
Public Education and Religious Liberty, called the ruling "a
significant erosion of First Amendment protections."

The New York City-based group, known as PEARL, backed the original
lawsuit, filed in 1978, that challenged the district's Title I program
in religious schools.

Ms. Thurau also expressed fear that the ruling would be read broadly
by advocates of other forms of government aid to religious schools,
such as private school vouchers.

The decision "appears to give the green light to voucher initiatives
around the country," she said. Indeed, voucher advocates such as Clint
Bolick of the Washington-based Institute for Justice wasted no time in
hailing the ruling.

"By acknowledging that establishment clause law has significantly
changed in the past decade, the court's opinion bolsters school choice
advocates' argument that states may give parents educational
scholarships to spend at the public or private school of their choice,"
Mr. Bolick said in a statement.

But Justice O'Connor's opinion said nothing specifically about
vouchers and even suggested that government aid that ended up in the
coffers of private religious schools would be scrutinized differently
by the court.

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